1. Tendencies for states to favour preferential trade arrangements [PTAs] or regional trade agreements [RTAs] to multilateral trade negotiations [MTNs]

Core Issue/Paradox:

Pease text: States pick and choose

- or in the inverse, when national interest is best accomplished by undermining multilateral approaches politically [ICC] and economically [tying economic/military aid to state foreign policy positions]

- again, in the inverse, when security is best accomplished without the IO

Mansfield and Reinhardt article: MTNs can inspire RTAs to form

Bargaining Power and Insurance

"States enter PTAs...to increase their bargaining power." [p. 830]

PTAs help "by furnishing states with insurance against the emergence of conditions within GATT/WTO that could threaten their economic insterests, as well as by giving states a greater voice in multilateral trade talks and increasing their market power." [p. 830]

"Establishing a preferential arrangement can strengthen a state's bargaining position vis-a-vis nonmembers by furnishing it with insurance against developments within the multilateral regime that threaten its interests." [p. 834]

- developments like talks breaking down
- insurance in alternative trading opportunities

"PTAs may increase leverage by accumulating the market power of individual members, giving them a greater ability to influence their terms of trade and to negotiate favorable settlements with outsiders." [p. 836]

"The United States has proposed an extensive series of bilateral trade accords, with the explicit purpose of leveraging more concessions from nonmembers during the Doha round of WTO talks." [p. 838]

GATT/WTO poor monitoring of PTAs/RTAs leads to cheating

GATT/WTO bodies "have failed to reach judgment on all but one of the 118 PTAs submitted for review, mostly because of differences among members about what constitutes compliance." [p. 832-3]

- more difficulty with increased members, increased heterogeneity of perspectives of compliance

"Safeguarding access to crucial overseas markets by forming a PTA is particularly useful if the enforcement mechanisms in the multilateral trade regime, designed to minimize discrimination and new protectionism, prove weak. [p. 834]

- significant irony: PTAs themselves increase weakness in WTO monitoring

2. Analogy: USA undermining the ICC as states undermine MTNs with PTAs

Timeline:

United States signs the Rome Statute of the International Criminal Court on December 31, 2000

'

Louise Arbour [recently appointed UN High Commissioner for Human Rights], former Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, Statement to the Preparatory Committee on the Establishment of the International Criminal Court, 8 December 1997

'[A] treaty-based International Criminal Court will depend, in practical terms, on effective state co-operation for its proper functioning, just as much as the ad hoc Tribunals for the former Yugoslavia and Rwanda do.''

Jamie Mayerfeld on how states can demonstrate their willingness to be law-abiding:

"The best proof of a law-abiding disposition is the willingness to make oneself accountable for violations of the law. The US assertion of a moral rectitude that renders external supervision superfluous resembles the the ideology of absolute monarchy....To appoint oneself as the exclusive judge of one's conduct toward others is to encourage a degree of arrogance, bias, insensitivity, coarseness, greed and self-flattery favorable to the abuse of power." [p. 128]

Rome Statute Article 98: Cooperation with respect to waiver of immunity and consent to surrender

1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

George W. Bush Inaugurated as "President" January 2001

United States unsigns the Statute on May 6, 2002

Quite dramatic to unsign a treaty"

In a communication received on 6 May 2002, the Government of the United States of America informed the Secretary-General of the following:

"This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty."

John Bolton, on the ICC, just before being appointed Assistant Secretary of State for Arms Control and International Security:

The ICC "provisions seem to imply that the United States would have been guilty of a war crime for dropping atomic bombs on Hiroshima and Nagasaki. This is intolerable and unacceptable." [p. 120]

Jamie Mayerfeld's reply:

Bolton's "stance reflects the continuing inability, indeed refusal, of the United States to reflect on the meaning of Hiroshima." [p. 120]

Reaction from Ambassador William H. Luers, President and Chief Executive Officer of United Nations Association of the USA:

"The decision to become the world's first nation to disavow its own signature on an international treaty is truly disconcerting. It serves no worthy purpose, it undermines historic U.S. leadership in promoting international justice, and it damages relations with our allies."

Irony: Leftist West Wing even opposes involvement with ICC

November 7, 2001: Season 3, episode 6: Leo, Chief of Staff character, his time in Vietnam, and the ICC

Despite legal quibbling over the plotline's inapplicability, the idea implicates the US military's standard operating procedure and their desire to reserve their right to commit acts that the ICC would prosecute: genocide, crimes against humanity and war crimes. [Dresden, Hiroshima, Nagasaki]

United States enacts American Servicemembers' Protection Act of 2002 [ASPA], the "Hague Invasion Law"

The International Federation of Human Rights view of ASPA:

It "authorizes the President to make use of 'all means necessary and appropriate' to free an American citizen detained by the ICC- hence the dubbing the 'Hague Invasion Act'." [p. 8]

ASPA "criticizes the legal grounds of the Court, is critical of international law and accounts for American unilateralism on the international scene in trying to impose its ICC-objections to other states by using means of pressure deriving from US economic, political and military superiority." [p. 6]

"The American offensive is not limited to diplomatic maneuvering; it is most often accompanied by wide-ranging economic, financial, and/or industrial promises and, if a State refuse to compromise, by serious and absolutely unacceptable threats at the military and
economical levels. [p. 17]

"Consequently, in today’s hegemonic world, only a handful of great world powers can face American pressures on the ICC. But the balance is fragile and only firm and unambiguous public statements, notably from the fifteen States of the European Union, may guarantee the independence and the impartiality of the ICC." [p. 17]

Coalition for the ICC on ASPA

Jamie Mayerfeld on ASPA:

ASPA "bars US participation in UN peacekeeping missions to countries belonging to the [ICC]; cuts off military aid to most countries that have ratified the Treaty unless they promise not to transfer US citizens to the Court; and authorizes military action to liberate US and other alied service members taken into the Court's custody." [p. 95]

"If the United States is to serve as beneficent world sovereign (for no one else is fitted to play that role), it must not be made to endure penalties by outsiders who object to the means it chooses." [p. 117]

- sadly, though, if the means it chooses are prosecutably by the ICC, does the UN want the US acting on its behalf?

ASPA "punishes countries that have pledged to prosecute genocide, war crimes, and crimes against humanity, and that reasonably seek to protect their own inhabitants from the infliction of these crimes by foreign troops. The same policy makes the world's worst human rights abusers, which for obvious reasons have declined to join the Court, preferred recipients of the United States' huge military assistance program. It seems like a policy crafted with the very intention of subverting democracy." [p. 118]

Jamie Mayerfeld on US unilateralism:

"The sense that the war against terrorism is a common struggle encourages the thought that collective rather than unilateral solutions are needed. Some have argued that, for reasons of perceived legitimacy, the International Criminal Court may provide the best forum to prosecute internatinal terrorist charged with crimes against humanity." [p. 106]

United States seeks Article 98 impunity agreements with states that have ratified the ICC

My first encounter with this issue: Saddam Hussein capture article: particularly where to try him

Amnesty International report of impunity agreement with Australia

"A State that signs such an agreement agrees that they will not surrender an American national to the ICC without the consent of the United States."

States that have signed impunity agreements with the US

Impunity agreements designed to prevent US citizens [including military] from being extradited to the ICC

Leveraging agreement with witholding military and economic aid

On July 1, 2003 the USA announced the withdrawal of military assistance to 35 states who are parties to the Rome Statute and have refused to sign an impunity agreement with the USA.

"The Bush administration today cut over $89 million in military aid to 32 friendly countries because they refused to exempt U.S. citizens and soldiers from the jurisdiction of the new International Criminal Court (ICC)--the world's first permanent tribunal to prosecute the perpetrators of war crimes, crimes against humanity and genocide."

Coalition for the ICC on bilateral impunity agreements [BIAs]

US treating different ICC signatories differently

        

Human Rights Watch letter from Executive Director Kenneth Roth to Secretary of State Colin Powell on December 9, 2003:

"A policy that sanctions small democratic states [Mali, Benin and Trinidad and Tobago] while waiving sanctions for European states [six future NATO member states that refused to sign a bilateral immunity agreement] is indefensible."

- even the waivers are politicized

“Several states have signed agreements only in the face of what their diplomats have labeled ‘unbearable’ pressure, including threats to cut not only military aid, but humanitarian aid, and economic assistance as well.”

The International Federation of Human Rights press release: US threatens EU over ICC

"The United States is threatening those who dare oppose their proposals. As a result, the European Union has become the target of the Bush administration’s strong arm for having, courageously, taken leadership in the campaign against the United States’ version of an 'a la carte' International Criminal Court."

3. Questions to Ponder

2. How can the US reverse negative opinion of their opposition to the ICC as long as they do not sign on to it?

Bibliography

Mansfield, Edward D. and Eric Reinhardt, “Multilateral Determinants of Regionalism: The Effects of GATT/WTO on the Formation of Preferential Trading Arrangements,” International Organization, 57 (Fall 2003): 829-862.

Mayerfeld, Jamie, “Multilateral Determinants of Regionalism: The Effects of GATT/WTO on the Formation of Preferential Trading Arrangements,” Human Rights Quarterly, 25 (2003): 93-129.

Pease, Kelly-Kate. International Organizations: Perspectives on Governance in the Twenty-first Century. Second edition. Upper Saddle River, NJ: Pearson Education, 2003.